EFC SUBMISSIONS ON ‘REVIEW OF LABOUR

LEGISLATION IN SRI LANKA’

INTRODUCTION

The employment relationship has been described in the Blackstone Commentaries as the third most import human relationship next to parent-child and husband-wife. Naturally, employers as well as employees want it to be a continuing relationship for the mutual benefit of each other. There is however a significant difference in the relationship between an employer and an employee as opposed to the other two. This is not often acknowledged. The difference is that the existence of the employment relationship is totally dependent on a viable social or economic activity. In other words, the relationship originates in order to pursue a clearly defined activity. The relationship becomes irrelevant in the absence of such activity, or in the event of the person employed becoming irrelevant to that activity.

Prior to the industrial revolution, employment was looked upon as yet another contract between two parties, terminable at the will of the other, subject to the condition of notice in certain cases. Even the law proceeded on the basis that it would give effect to what the employer and employee have agreed unless there agreement was illegal or contrary to public policy. Gradually, with the replacement of the laissez-faire state with the modern welfare state, legislation was enacted with regard to terms and conditions of employment. The State intervened on the basis that it was imperative to balance the unequal bargaining position of the employer and employee – in other words, to protect the weaker party against the stronger. The impact of legislation on the contract of employment has been significant thereafter.

Sri Lanka, being under the British rule, was heavily influenced by English law and most of the legislation in Sri Lanka reflects the labour laws enacted in Britain during that time. However, what is unfortunate is that whilst the British have discarded many of these laws which are now irrelevant in the context of the present socio economic situation, Sri Lanka has held on to them and even proceeded to further regulate rather than taking a pragmatic view of the situation and looking at what is best for our country.

We would now like to make some specific comments/recommendations with regard to some of the more important pieces of legislation which requires urgent review/amendment.